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Federal Prisoners and COVID-19: Background and Authorities to Grant Release

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Federal Prisoners and COVID-19: Background and Authorities to Grant Release Federal Prisoners and COVID-19: Background and Authorities to Grant Release Updated April 23, 2020 Congressional Research Service https://crsreports.congress.gov R46297 SUMMARY R46297 Federal Prisoners and COVID-19: Background April 23, 2020 and Authorities to Grant Release Nathan James There is concern that coronavirus disease 2019 (COVID-19) could quickly spread among federal Analyst in Crime Policy prisoners and prison staff because of the nature of the prison environment. Prisons are places where hundreds of prisoners and staff are living and working in close proximity to each other and Michael A. Foster where they are forced to have regular contact. Prisons are generally not conducive to social Legislative Attorney distancing. Also, prison infirmaries typically do not have the resources available to most hospitals, such as isolation beds, that would help prevent the spread of the disease. There are also concerns that if prison staff were hard hit by COVID-19, a significant number of staff would require quarantine; they would be unavailable to perform their duties, including providing care to sick prisoners; and the disease could spread. On March 13, 2020, the Bureau of Prisons (BOP) released a COVID-19 action plan. The action plan largely focuses on restricting access to federal prisons and limiting the movement of prisoners between prisons. On March 18, 2020, the American Civil Liberties Union (ACLU) sent a letter to the Department of Justice (DOJ) and its BOP seeking the release of prisoners in the custody of BOP and the U.S. Marshals Service (USMS) who might be at risk for serious illness because of COVID-19, and a reduction in the intake of new prisoners to avoid overcrowding. In addition, multiple Members of Congress have also urged DOJ and BOP to take steps “to reduce the incarcerated population and guard against potential exposure to coronavirus,” and legislation has been introduced that would require the release of some federal prisoners during a national emergency relating to a communicable disease. BOP updated its action plan on March 19, 2020, to clarify that while prisoner movement is limited under the plan, BOP will still move prisoners as needed to properly manage the prison population and to outline new conditions that must be met if a prisoner is transferred. On March 31, 2020, BOP announced that effective April 1, 2020, all prisoners will be placed on a 14-day lockdown in their assigned cells as a measure to prevent the spread of COVID-19. Prisoners will be allowed to leave their cells during this period for certain reasons, such as attending programming or to shower and use the phone. On April 14, 2020, BOP announced that its action plan, which was initially set to expire on April 12, 2020, would be extended until May 18, 2020. Regarding the release of federal criminal defendants in detention pending trial, 18 U.S.C. Section 3142 allows for federal courts to reopen pretrial detention hearings based on new information or permit temporary release of pretrial detainees for “compelling” reasons. With respect to the release of federal prisoners who are currently serving their court-imposed sentences, 18 U.S.C. Section 3582(c)(1)(A) permits a federal court to reduce a prisoner’s sentence and impose a term of probation or supervised release if the court finds that “extraordinary and compelling reasons warrant such a reduction,” or the prisoner is at least 70 years of age, the prisoner has served at least 30 years of his or her sentence, and BOP has determined that the prisoner is not a danger to the safety of any other person or the community. Under 34 U.S.C. Section 60541(g), BOP is authorized to conduct a program whereby elderly and terminally ill prisoners who meet certain statutory requirements can be placed on home confinement. Under 18 U.S.C. Section 3624(c), BOP is authorized to place prisoners in a Residential Reentry Center (i.e., a halfway house) and/or on home confinement at the end of their sentences. The Coronavirus Aid, Relief, and Economic Security Act (the CARES Act; P.L. 116-136) permits the BOP Director to extend the maximum amount of time for which a prisoner may be placed on home confinement under Section 3624(c)(2) under certain circumstances. Under Article II, Section 2 of the U.S. Constitution, the President has broad authority to grant clemency for federal offenses, which can include commuting a prisoner’s sentence to time served. The Attorney General has issued three memoranda outlining how DOJ will utilize the legal authorities available to it to respond to the COVID-19 pandemic. Two of the memoranda are to the BOP Director, and they direct BOP to increase the number of prisoners placed on home confinement and outline factors for BOP to consider when making decisions about which prisoners should be released from federal prison. The other memorandum is for all components of DOJ, including all United States Attorneys, and it provides a directive on how prosecutors should make decisions about the use of pretrial detention for federal defendants in light of possible exposure to COVID-19. Congressional Research Service Federal Prisoners and COVID-19: Background and Authorities to Grant Release Contents Introduction ..................................................................................................................................... 1 Background on People Confined in the Federal Criminal Justice System ...................................... 2 COVID-19 and the Prison Environment ......................................................................................... 3 BOP’s COVID-19 Action Plan ........................................................................................................ 4 Existing Authorities to Grant Release to Prisoners ......................................................................... 6 Pretrial Detention and Release .................................................................................................. 7 Compassionate Release ............................................................................................................. 9 Early Release Pilot Program ................................................................................................... 12 Community Confinement ........................................................................................................ 12 Executive Clemency ................................................................................................................ 13 The Attorney General’s Directives Regarding DOJ’s Response to COVID-19 ............................ 14 Memoranda Regarding Home Confinement ........................................................................... 14 Memorandum Regarding Pretrial Detention ........................................................................... 16 Current Legislation ........................................................................................................................ 16 Contacts Author Information ........................................................................................................................ 17 Congressional Research Service Federal Prisoners and COVID-19: Background and Authorities to Grant Release Introduction On March 18, 2020, the American Civil Liberties Union (ACLU) sent a letter to Attorney General William Barr and Bureau of Prisons (BOP) Director Michael Carvajal asking them to release federal prisoners who might be at risk of serious illness due to coronavirus disease 2019 (COVID-19) infection and to reduce the intake of new prisoners to reduce overcrowding.1 The ACLU called on BOP to utilize authorities granted to it, such as compassionate release and home confinement for elderly offenders, to reduce the number of at-risk prisoners in the federal prison system. The ACLU also asked the Department of Justice (DOJ) to direct the U.S. Marshals Service (USMS) to release from custody any individuals who are at risk of serious illness related to COVID-19, such as those who are elderly and/or have chronic health conditions. Multiple Members of Congress have additionally urged DOJ and its BOP to take steps “to reduce the incarcerated population and guard against potential exposure to coronavirus,”2 and legislation has been introduced that would require the release of some prisoners during a national emergency relating to a communicable disease.3 Use of the Term Prisoner Traditionally, prisoner refers to someone who has been convicted of a crime, sentenced to a period of incarceration, and is incarcerated in a prison. However, USMS refers to people in their custody as prisoners even though these individuals have not been convicted of an offense.4 Throughout this report, prisoner refers to anyone who is incarcerated under the authority of DOJ, both those who are in the custody of USMS pending the resolution of their cases and individuals who are serving a period of incarceration in a BOP facility. BOP data indicate that COVID-19 has become widespread in the federal prison system. As of April 22, 2020, BOP reported that 566 federal prisoners and 342 BOP staff members in 47 prisons and 16 Residential Reentry Centers had tested positive for COVID-19 and 24 prisoners have died from the disease (no BOP staff have died).5 Prior to these positive tests, BOP released a COVID- 19 action plan.6 The action plan, discussed below, largely focuses on restricting access to federal prisons and limiting the movement of prisoners. In addition, the Attorney General has issued three 1 Letter
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